Ore-Ida Foods, Inc.

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ore-Ida Foods, Inc. and Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 36-CA-1597 and 36-CA-1598. May 9, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a charge filed by Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called Teamsters, and a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called Meat Cutters, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 19, issued an order consolidating cases, consolidated complaint, and notice of hearing, dated December 22, 1966, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, the order consolidating cases, consolidated complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the consolidated complaint alleges, in substance, that on or about November 28, 1966, each of the above- named Unions was duly certified by the Board' as the exclusive bargaining representative of Respondent's employees in a unit found appropriate and that, since on or about December 2, 1966, Respondent has refused and is refusing to recognize or bargain with the Unions as such exclusive bargaining representatives, although the Unions have requested and are requesting it to do so. On January 3, 1967, the Respondent filed its answer denying the commission of the unfair labor practices alleged. On February 20, 1967, the General Counsel filed with the Board a motion for summary judgment, urging that the Board, in view of the admissions contained in the Respondent's answer and the documents annexed as appendixes to the moving papers, find the allegations of the complaint to be true and make findings of fact and conclusions of law in conformity with the allegations of the complaint. On February 23, 1967, the Board issued an order transferring proceeding to the Board and ' The certifications of representatives were issued in Cases 36-RC-2090 and 36-RC-2092, by the Regional Director for notice to show cause on or before March 13, 1967, why the General Counsel's motion for summary judgment should not be granted. On March 9, 1967, the Respondent filed exceptions and a brief in opposition to General Counsel's motion for summary judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment In its exceptions and brief in opposition to General Counsel's motion for summary judgment, Respondent contends, inter alia, that it is entitled to a hearing to insure full litigation of the facts. This contention is without merit, as the Respondent's answer to the complaint and its exceptions and brief in opposition to General Counsel's motion for summary judgment establishes that the Respondent is seeking to relitigate matters decided in the prior representation proceeding. The record before us establishes that on December 16, 1965, following a hearing, the Regional Director for Region 19 issued a Decision and Direction of Elections in which he found that either a separate maintenance unit, or a combined unit of production and maintenance employees, as requested by the Teamsters and the Meat Cutters, respectively, may be appropriate; the Regional Director accordingly directed self-determination elections in separate voting groups of (1) maintenance employees, and (2) production employees. On February 2, 1966, after a request for review by the Respondent, and a denial of that request by the Board, a majority of the employees in voting group (1) selected the Teamsters as their bargaining representative, and a majority of the employees in voting group (2) cast ballots against the Meat Cutters. Thereafter, the Respondent and the Meat Cutters filed separate objections to election and to conduct affecting results of election. After an administrative investigation, the Regional Director issued a Supplemental Decision, Certification of Representative, and Certification of Results, in which he overruled the objections; certified the Teamsters as the exclusive representative of the employees in the appropriate maintenance unit; and certified that a majority of the valid ballots had not been cast for any labor organization in voting group (2). On September 27, 1966, following requests for review by the Respondent and the Meat Cutters, the Board issued a Decision on Review, Order, and Region 19 on behalf of the Board. 164 NLRB No. 64 ORE-IDA FOODS Direction of Second Elections (160 NLRB 1396) setting aside the elections conducted on February 2, 1966, and directing second elections in both voting groups. On November 17, 1966, a majority of the employees in voting group (1) selected the Teamsters as their bargaining representative, and a majority of the employees in voting group (2) selected the Meat Cutters as their representative. On November 28, 1966, the Regional Director certified the Teamsters as exclusive bargaining representative of the appropriate maintenance unit and the Meat Cutters as exclusive bargaining representative of the appropriate production unit. As the Respondent admits in its answer, the Teamsters, on November 23, 1966, and the Meat Cutters on December 2, 1966, requested that the Respondent bargain collectively in the certified units, and the Respondent, on December 2, 1966, refused and has continued to refuse the Unions' requests. In its answer, the Respondent admitted all allegations of the complaint except that it denied that the two units are appropriate and that its conduct violated Section 8(a)(5) and (1) of the Act. In its exceptions, and brief in opposition, to the motion for summary judgment, the Respondent contends that the two certified units are not appropriate and demands a hearing (a) as a matter of right, or (b) in the alternative, to litigate factual issues pertaining to allegedly new developments arising since the representation proceeding. In support of its contention that the units are inappropriate (1) the Respondent offers to present both preexisting evidence, which it is alleged the Regional Director erroneously disregarded, and alleged new evidence concerning (a) combined production and maintenance units at other plants of the Respondent and at plants of other employers in the area and the industry, the true relevance and importance of which the Respondent alleges were not fully ascertainable until the Board, subsequent to the hearing in the representation case herein, issued its decision in Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387; and (b) the Teamsters' piecemeal organizational tactics, which allegedly establish that the Teamsters' petition for a separate maintenance unit was based on extent of organization; and (2) the Respondent also seeks to clarify the Regional Director's alleged misconstruction of evidence as to the working relationship between Respondent's production and maintenance employees. In the absence of newly discovered or previously unavailable evidence that warrants a hearing, the Board normally does not permit relitigation in a 2 Pittsburgh Plate Glass Company v N L R B, 313 U S 146, Collins & Atkman Corporation, 160 NLRB 1750; United States Rubber Company, 155 NLRB 1298 NLRB V. Douglas County Electric Membership Corporation, 358 F 2d 125, 129 (C A 5), citing with approval 439 subsequent 8(a)(5) complaint proceeding of issues which were or could have been raised in a prior representation proceeding.2 Admittedly, the issues which Respondent seeks to raise in the instant proceeding relate to the correctness of the unit determination representation proceeding. As noted, the Board heretofore denied the Respondent's request for review of the Regional Director's unit findings. No newly discovered "clarifying" evidence is offered in support of contention (2), which we find clearly without merit. The allegedly newly discovered evidence offered in support of contention 1(a) and (b) is similar in nature to evidence which was available at the time of the hearing in the representation proceeding and was either duly considered or properly rejected as irrelevant. We find no merit in Respondent's contention that the Board's decision in Mallinckrodt warrants a hearing herein. Aside from other considerations, Mallinckrodt was prospective in application, and, in any event, dealt with craft unit determinations whereas the instant case does not involve a craft unit. Moreover, the Board in Crown Simpson Pulp Company, 163 NLRB 796, issued subsequent to Mallinckrodt, affirmed its holding in American Cynamid Company, 131 NLRB 909, relied on by the Regional Director herein, as to the appropriateness of separate units or a combined unit of production and maintenance employees in previously unorganized plants. Accordingly, these contentions fail to raise any genuine issue warranting a hearing or requiring modification of the conclusions reached in the representation proceeding. We also find no merit in the Respondent's contention that it is entitled to a hearing as a matter of right. An evidentiary hearing is not a matter of right where, as here, the proffered evidence relates to no material or competent factual issue to be determined.; As Respondent has made no meritorious offer of additional evidence or alleged any further facts that would require modification or reexamination of the determinations made in the representation proceeding, it is clear that, in the circumstances of this case, an evidentiary hearing is not warranted.4 All material issues thus having been decided or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material N L R B v Atr Control Products, 335 F 2d 245, 249 (C A 5) Cf KVP Sutherland Paper Company, 143 NLRB 834, enforcement denied and remanded to the Board 356 F 2d 671 (C A 6) ' E-Z Davies Chevrolet, 161 NLRB 1380 and cases cited therein 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, a corporation duly organized and existing by virtue of laws of the State of Delaware and it is engaged in the processing, sale, and distribution of potatoes , corn, and related products at its plant in Ontario, Oregon , which is alone involved in this proceeding, and at another plant in the State of Idaho . During the past year , which is a representative period , the Respondent sold and delivered from its Ontario plant to points outside the State of Oregon potatoes , corn , and other goods and related products valued in excess of $50,000. Respondent admits and we find that it is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED A. The Representation Proceeding 1. The units At all times material herein, the following employees of the Respondent at its food processing operation in Ontario, Oregon, have constituted units appropriate for collective bargaining within the meaning of the Act: (1) All maintenance employees, including employees in the general maintenance department, the packaging maintenance department, the building and grounds maintenance department, the boiler department , the refrigeration department, the electrical department, and the truck mechanic department, but excluding watchmen and guards, professional employees , and supervisors as defined in the Act. (2) All production employees, including employees in the quality control department, the sanitation department, the field department, and the warehouse department , but excluding over-the- road truckdrivers , office clerical employees , guards, professional employees , and supervisors as defined in the Act. 2. The certification On November 17, 1966, a majority of the employees of the Respondent in said maintenance unit, in a secret election conducted under the supervision of the Regional Director for Region 19, designated Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as their representative for the purposes of collective bargaining, and a majority of the employees of the Respondent in the said production unit designated Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as their representative for the purposes of collective bargaining with the Respondent. On November 28, 1966, the Board certified the Unions as the collective- bargaining representatives of the employees in said units, and the Unions continue to be such representatives. B. The Requests to Bargain and the Respondent's Refusal On or about November 23, 1966, the Teamsters and, on or about December 2, 1966, the Meat Cutters requested the Respondent to bargain collectively with them as the exclusive bargaining representatives of all employees in the respective above-described units for which they had been certified. Commencing on or about December 2, 1966, and continuing to date, the Respondent did refuse, and continues to refuse, to bargain collectively with the Unions as exclusive collective- bargaining representatives of all employees in said units. Accordingly, we find that the Unions were duly certified by the Board as the collective-bargaining representatives of the employees of the Respondent in the appropriate units described above in the Board's certifications, and that the Unions at all times since November 28, 1966, have been and now are the exclusive bargaining representatives of all the employees in the aforesaid units, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since about December 2, 1966, refused to bargain collectively with the Unions as the exclusive bargaining representatives of its employees in the appropriate units, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request , bargain collectively with the Unions as the exclusive representatives of all employees in the appropriate units and, if an understanding is reached, embody such understanding in signed agreements. CONCLUSIONS OF LAW 1. Ore-Ida Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ORE-IDA FOODS 2. Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. (1) All maintenance employees employed by the Respondent at its food processing operations in Ontario, Oregon, including employees in the general maintenance department, the packaging maintenance department, the building and grounds maintenance department, the boiler department, the refrigeration department, the electrical department, and the truck mechanic department, but excluding watchmen and guards, professional employees, and supervisors as defined in the Act, and (2) all production employees employed by the Respondent at its food processing operations in Ontario, Oregon, including employees in the quality control department, the sanitation department, the field department, and the warehouse department, but excluding over-the-road truckdrivers, office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 28, 1966, Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, has been the exclusive representative of all employees in the above-described maintenance unit, and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, has been the exclusive representative of all employees in the above-described production unit, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 2, 1966, and at all times thereafter, to bargain collectively with the above-named labor organizations as the exclusive bargaining representatives of all the employees of Respondent in the appropriate units, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER 441 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ore-Ida Foods, Inc., Ontario, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of employees at its Ontario, Oregon, operations in the following appropriate unit: All maintenance employees, including employees in the general maintenance department, the packaging maintenance department, the building and grounds maintenance department, the boiler department, the refrigeration department, the electrical department, and the truck mechanic department, but excluding watchmen and guards, professional employees, and supervisors as defined in the Act. (b) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bargaining representative of employees at its Ontario, Oregon, operations in the following appropriate unit: All production employees, including employees in the quality control department, the sanitation department, the field department, and the warehouse department, but excluding over-the-road truckdrivers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of all employees in the above-described maintenance unit, and with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the above-described production unit, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in signed agreements. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Ontario, Oregon, place of business, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 19, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with Joint Council of Teamsters No. 37, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of employees at our food processing operations in Ontario, Oregon, in the following appropriate unit: All maintenance employees, including employees in the general maintenance department, the packaging maintenance department, the building and grounds maintenance department, the boiler department, the refrigeration department, the electrical department, and the truck mechanic department, but excluding watchmen and guards, professional employees, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bargaining representative of employees at our food processing operations in Ontario, Oregon, in the following appropriate bargaining unit: All production employees, including employees in the quality control department, the sanitation department, the field department, and the warehouse department, but excluding over-the-road truckdrivers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the Joint Council of Teamsters No. 37, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of all employees in the above- described maintenance unit, and with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the above-described production unit, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in signed agreements. ORE-IDA FOODS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Union Street, 327 Logan Building, Seattle, Washington 98101, Telephone 583-4532, if they have any questions concerning this notice or compliance with its provisions.